EAPIL blog

This post was collectively written by Marion Ho-Dac and Matthias Lehmann. It consists of two parts. Part two will be published on 24 February 2023.

The Digital Services Act (DSA) is a landmark legislation in many respects, also regarding its volume (102 pages in the O.J., no less than 156 Recitals). It will force online platforms such as Youtube, Google or Amazon to be more responsible for the contents posted on them. It has been adopted on 19 October 2022 and will (mainly) be applicable from 17 February 2024 (Article 93(2) DSA). Inter alia, it partially amends the e-commerce Directive (Art. 89 DSA) but preserves its famous “internal market clause”.

The DSA’s Indifference to PIL

The DSA states that it applies “without prejudice to Union rules on private international law” (Recital 10 DSA). However, the text deals with the provision of “intermediary services” within the broader concept of “information society services” (i.e. digital services). These virtually always raise cross-border private-law issues (cf. also Recital 2 DSA). A basic example is a legal action by a user in the EU to request the removal of (allegedly) defamatory online content. The question of the competent court will be resolved by the Brussels I bis Regulation – but what about the applicable law?

The DSA does not resolve such conflicts of laws, but pretends they do not exist. Time and time again, it refers to the “applicable national law”, without giving any indication how this law is to be determined. The Act flies in a high legal stratosphere, hovering over any differences between Member State and other national laws.

Yet, there are instances in which conflicts of laws play a role when applying the DSA (as in all EU regulations dealing with private law issues). The first will be studied in this post and concerns the determination of the applicability of the DSA. The second instance is where the DSA makes reference to a national legal system, for instance with regard to illegal content. This will be the subject of another post.

DSA Scope of Application

In the global digital ecosystem, the application of the DSA, as a uniform body of rules, requires that EU law as such is applicable. This is far from obvious since the vast majority of online platforms are based outside the EU. The DSA’s scope of application focuses on the recipients of the intermediary service – their establishment or location in the EU – “irrespective of where the providers […] have their place of establishment” (Article 2(1) DSA). The recipients are those who simply “use” intermediary services, “in particular for the purposes of seeking information or making it accessible” (Article 3(b) DSA).

The provision on the scope of the DSA presupposes that the providers are “offering” their services to recipients in the EU. Characterising the offering to users in a given territory is a well-known difficulty in private international law. But here the issue is more sensitive than e.g. in Article 17(1)(c) Brussels I bis Regulation as it relates to the scope of the DSA’s regulatory regime.

If the text stopped there, the DSA would have a “global vocation”. Such an approach, which could be described as a kind of “maximalist European unilateralism”, is however unpalatable. It would have large extraterritorial effects, create tensions with third countries and, in practice, would probably be unworkable given the limited capacities of European market supervision.

But the DSA is much more cautious and imposes a “substantial connection” with the EU (Article 3(e) DSA). This is de jure the case when the provider of intermediary services is established in the Union. Otherwise, the text requires that either the provider has a “significant number of recipients of the service” in the EU, or that it “targets” recipients in the EU. The first criterion is based on the economic and societal weight of the foreign operator, the latter on its behaviour. Ultimately, these criteria attenuate the European unilateralist approach and thus make it acceptable on a global scale.

Impact on Conflicts of Laws

The applicability of the DSA has consequences for conflicts of laws in case of international private disputes that fall within its scope. The national law of a third State which would be designated as applicable will be set aside in favour of its provisions, which qualify as overriding mandatory rules. Though the text is silent on this, the DSA certainly is regarded as crucial by the EU for safeguarding its public interests, such as its political, social or economic organisation (cf Article 9(1) Rome I). The DSA thus belongs to the European public policy, which is part of the public policy of the Member States.

Although many of its provisions are of a procedural nature, others may have an incidence on the level of substantive law, for instance tort law. This is in particular the case for those rules that concern liability. They operate in a double-edged sword by excluding liability but only under certain conditions. Where these conditions are not fulfilled, the “free pass” on liability under EU law is suspended.

To illustrate, Art 6 DSA exempts hosting services from liability for the hosted content, but only under certain conditions. One of them is that the provider, upon obtaining knowledge or awareness of illegal content, acts expeditiously to remove or to disable access to it (Article 6(1)(b) DSA). In other words, where the hosting provider does not act expeditiously, the way to liability under the applicable law is open.

Although the rule does not impose liability itself, the underlying policy is that the EU will not countenance hosting service providers that do not honour their duties to remove illegal content expeditiously. This could be interpreted as an overriding mandatory rule, which supersedes foreign rules that give a free pass to all hosting service providers. Of course, this interpretation still needs to be tested in court.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that enforcement measures can be validly carried out 5 minutes after the certificate provided for in Article 53 of the Brussels I bis Regulation was served on the judgment debtor.

I have already reported on this judgment which also addressed the issue of the scope of the exclusive jurisdiction in Article 24(3).

Background

The case was primarily concerned with the enforcement of an English money judgment rendered in 2012 and thus subject to the Brussels I Regulation. However, the English court delivered an order in 2018 which ruled that the shares owned by the wife of the judgment debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband. The 2018 English order was subject to the Brussels I bis Regulation.

The judgment creditor initiated enforcement proceedings in France over the shares on the basis of both the 2012 judgment and the 2018 order.

Requirements for Enforcing the English Decisions in France

There was no issue that the 2012 judgment was enforceable in France: the creditor had obtained a declaration of enforceability from the competent French authority, pursuant to the Brussels I Regulation shortly after obtaining the judgment.

However, in order to enforce the 2018 order, it was necessary to obtain an Article 53 certificate from the court of origin, and serve it on the debtor “before the first enforcement measure”, pursuant to Article 43(1) of the Brussels I bis Regulation.

Article 43 does not say how long in advance the certificate should be served on the debtor, but Recital 32 explains that service should be effected “in a reasonable time” before the first enforcement measure.

In that case, the creditor served the certificate on the debtor at 2:55 pm. Then, it carried out the attachment of the shares at 3 pm.

The debtor applied for the attachment to be lifted on a number of grounds, including that the attachment had not been carried out in a reasonable time after service of the certificate.

Judgment

The argument was not formulated very clearly at the early stages of the proceedings. The court of appeal only underscored that service of the certificate was the only requirement for enforcing the 2018 order, and that service had been made at 2:55 pm, before the attachment.

In contrast, the argument was perfectly formulated in the appeal before the Supreme Court, with a direct reference to Recital 32 and to the claim that 5 minutes was not a reasonable time.

The Cour de cassation dismissed the appeal and thus validated the attachment.

Unfortunately, while it did answer the argument on the jurisdiction of the English Court, it did not give any reason to dismiss the argument on the time of service of the Article 53 certificate, except that it was manifestly wrong. It held:

Sur les premier et deuxième moyens et sur le troisième moyen, pris en seconde branche, ci-après annexés

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

And that’s it !

The French Cour de cassation has long been famous for delivering cryptic decisions, offering reasons in a couple of sentences. In recent years, however, the Court has realised that it had to make efforts and give more reasons in order to improve the accessibility of its judgments and of the law generally. The Court entered into a new era of motivation enrichie (enriched reasons), or motivation développée.

Well, so much for motivation enrichie and developpée.

We are back to the days of guessing what the court meant. What we know, however, is that the challenge against the enforcement measure has now been finally dismissed, and that the argument that the certificated was served 5 minutes before the enforcement measure was rejected, and that it was considered “manifestly” wrong.

Assessment

The requirement that the art 53 certificate was introduced in 2012. While the European lawmaker was completing its project of abolishing all intermediate measures to enforce foreign judgments within the EU (initiated in Tampere in 1999), it reintroduced one with Art. 43(1): the requirement only applies to the enforcement foreign jugdments, and is thus an additional delay and cost for the creditor. Just as good old exequatur.

The goal is to offer an additional protection to the debtor by informing him of the intention of the creditor to initiate enforcement proceedings in another Member State. But one wonders why the debtor should receive any additional protection. By definition, he was ordered to pay the monies by an enforceable judgment, which means that he could not convince the foreign court. He still does not want to pay, which forces the creditor to initiate enforcement proceedings. Finally, the debtor may be taking step to dispose of his assets, which is exactly what the debtor had done in this case, by transferring his assets to his wife. This all begs the question of why EU law should afford him any additional protection. Have we not reached the stage where the right to enforcement of the creditor should simply prevail?

It is therefore submitted that this judgment of the Cour de cassation is excellent, and that Article 43(1) of the Brussels I bis Regulation should be abolished, as the EAPIL Working Group on the Reform of the Brussels I bis Regulation will hopefully propose.

Distinguishing Enforceability and Enforcement of Judgments

If we leave aside policy and get back to law, there are several grounds which could be put forward to justify the outcome of this judgment.

Let’s first insist that the measures carried out over the shares at 3 pm were enforcement measures, aiming at transferring their ownership to the creditor. They were not protective measures, to which Article 43(1) does not apply (see Article 43(3)). Unfortunately, the judgment mentions at the beginning that the measure was a “saisie conservatoire“. This is simply a mistake (!), and art. 43(3) was never raised at any point of the proceedings.

The best rationale for the outcome of the judgment is that the proceedings were concerned with the validity of the French enforcement measure over the shares. As the CJEU has repeatedly held, however, the Brussels I bis Regulation only governs the conditions at which foreign judgments become enforceable in other Member States, but does not govern enforcement per se. The validity of French enforcement measures is only governed by French law. The requirement that the Article 53 certificate be served could not, therefore, impact the validity of an enforcement measure. It could only limit the enforceability of the foreign judgment. But there is no indication in the Brussels I bis Regulation that service of the certificate is a requirement for extending the enforceability of judgments in other Member States.

Finally, one wonders whether it was necessary to enforce the 2018 English order in the first place. The money judgment was the 2012 judgment. The 2018 order did not really need to be enforced. It only declared who the owner of the relevant assets was. Arguably, it would have been enough to recognise the 2018 order. And for that purpose, Article 43(1) does not require service of the Article 53 certificate.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.

For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged. For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective.

Abstracts should not exceed 500 words. Abstracts together with a short bionote may be submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.

For all the relevant information, see here.

The Hague Conference on Private International Law (HCCH) has recently published the new edition of the Practical Handbook on the Operation of the Apostille Convention.

The Handbook provides guidance on the practical implementation and operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, applied tens of millions of times every year to the benefit of individuals, families, and businesses from across the world.

This second edition provides updated information and resources in response to the latest developments in relation to the Convention, including by incorporating advice from recent meetings and reflecting on the experiences of the growing number of Contracting Parties. Key changes include a greater focus on the electronic Apostille Programme (e-APP), further explanation of the role of diplomatic missions, and the incorporation of outcomes of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations, the Experts’ Group on the e-APP and New Technologies, as well as the most recent meetings of the International Forum on the e-APP and the Special Commission on the practical operation of the Apostille Convention.

The Handbook is available here in English, French and Spanish.

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place on 11-12 October 2023 in Amsterdam. Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference The Perpetual Renewal of European Insolvency Law.

Submissions are welcome dealing, for instance, with (i) Public and social policy and the impact on corporate rescue, and vice versa, (ii) Pre-packs rehabilitated, (iii) Modern issues surrounding directors’ duties to file for insolvency and (iv) EU Preventive Restructuring Directive and European Insolvency Regulation.

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant, at jenniferl.l.gant@gmail.com by using the form available here.

The call for papers is available here. For further information on the conference, see here.

The number of States which, pressed by the need to relieve and speed up the work of the courts, have de-judicialised the dissolution of the marriage bond and assigned the responsibility thereto to various extrajudicial authorities (Civil Registrars, notaries, mayors, etc.), has considerably increased in recent times.

This has been the case in Spain, where, following the entry into force of Law 15/2015 of 2 July 2015 on Voluntary Jurisdiction, Spanish notarial authorities are competent to grant divorces (Articles 81, 82 and 87 of the Civil Code). Examples exist as well in Latin America (Cuba, Mexico, Brazil, Colombia, Ecuador, Costa Rica, Peru, Bolivia and Nicaragua), Europe (Italy, France, Portugal, Italy, Denmark, Norway, Greece, Russia, Latvia, Estonia, Ukraine, Moldova and Romania), Asia and Euro-Asia (Japan, Kyrgyzstan, China, Armenia).

In fact, a thorough examination of comparative law shows that the regulation of non-judicial divorce is very diverse, even in countries belonging to the same geographical area. Not in all cases does an authority intervene, nor, when it does, does it perform identical functions or is vested with the same competences. With this in mind, a monograph by Nuria Marchal Escalona, titled El Divorcio No Judicial en Derecho Internacional Privado (Thomson Reuters Aranzadi, 2022), analyses the private international law-related problems Spanish notaries face when authorizing a public deed of divorce in cross-border cases. It further deals with the difficulties foreign extrajudicial divorces meet to produce effect in Spain. The study of a per se intricate subject matter becomes even more complex due to the number of legal sources in Spanish private international law in the field.

The monograph addresses, in the first place, jurisdiction – international and territorial – to grant a public deed of divorce. At a second stage, it examines the law applicable both to the dissolution of the marriage and to the issues necessarily associated thereto, such  as the use of the family home, financial regime of the marriage, or maintenance. Lastly, it deals with the problems foreign non-judicial divorces run into to be effective in Spain. In particular regarding the latter point, the analysis is highly topical for three reasons: firstly, due to the  judgment in Case C-646/20, where the CJEU ruled that a divorce certificate issued by a civil registry official constitutes (subject to conditions) a “judicial decision”; by way of consequence, under Regulation 2201/2003 such divorces are to be recognized like a judicial decision. Secondly, Article 65 of Regulation 2019/1111 introduces a relevant novelty in the field, since, in contrast to the twofold combination of judicial decision (Art. 21) and public document (Article 46) of the Brussels I bis Regulation, it also allows for the effectiveness of registered private agreements. Finally, Article 96, paragraph 3, of the Spanish Civil Register Act extends the legal regime it itself accords to foreign judgments to decisions delivered by foreign non-judicial authorities in matters which, under to Spanish law, belong to the remit of judges and courts.

The monograph aims at offering a complete vision of the Spanish private international law rules regarding non-judicial divorce in a clear, praxis-oriented way, with an exhaustive analysis of comparative and case law. Above all, it provides the legal professionals essential guidance to overcome the fragmentation of sources in order to ascertain the rules pertinent to each individual case.

Burcu Yüksel Ripley (University of Aberdeen) has posted on SSRN a paper titled Cryptocurrency Transfers in Distributed Ledger Technology-Based Systems and Their Characterisation in Conflict of Laws. The final version will appear in an edited collection in honour of Jonathan Fitchen titled From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen (Hart, forthcoming).

The abstract reads as follows:

In modern payment systems that are used today, non-cash payments are predominantly executed by banks, acting as an intermediary between payers and payees, in the form of bank-to-bank (interbank) funds transfers through bank accounts. A fundamental structural change has been introduced to this method of making payments with the emergence of cryptocurrencies underpinned by distributed ledger technology (DLT). This has enabled that non-cash payments can be made outside of the banking system directly from payer to payee and secure digital records can be held independently of the usual central trusted authorities such as banks. This global paradigm shift, starting with the possibilities of cryptocurrencies in payments, has introduced new challenges for private international law. The issue of characterisation of cryptocurrency transfers in DLT-based systems is at the heart of the some of the key private international law questions, including the determination of the law applicable to cryptocurrency transfers. The efforts have thus far mainly focused on characterising cryptocurrencies themselves as money, property or claims and a discussion around the application of the lex situs as the predominant connecting factor in international property law and the consideration of the relevant conflict of laws rules regarding the transfer of intangibles for cryptocurrency transfers. The purpose of this chapter is to offer a new perspective on the characterisation of cryptocurrency transfers taking place within DLT-based cryptocurrency systems by utilising an analogy to electronic funds transfers and funds transfer systems under unitary and segmented approaches and consider the potential effects of both approaches on the law applicable to cryptocurrency transfers.

Morten Midtgaard Fogt (Aarhus University, Denmark) has had a book titled Choices, Limits and Consequences of Harmonisation of Commercial Law published. The abstract of the book reads as follows.

The harmonisation of private commercial law and the application of the various instruments of harmonisation are becoming increasingly complex. New formal or informal means of harmonisation are added to the panorama of harmonisation instruments and new actors, be it at global, regional or national level, are introduced as well. Regional harmonisation sets its footprint both internally and externally. Innovative (or reintroduced) methods and phenomena for the harmonisation of commercial law have been suggested. Still, the most important and dominant means of harmonisation are the traditional multilateral conventions, the flexibility of which have been improved by different types of reservations and review and/or revision clauses. Taken together, the harmonisation process with its various and different means constitutes a circle of law harmonisation, in which circle there is an interaction between, and reciprocal influence of, all the various formal or informal means of harmonisation.

This book analyses the process of law harmonisation with the focus on choices, limits and consequences and uses in particular the CISG and Cape Town Conventions as examples. It takes into account means, methods, role of old and new actors, principles of interpretation and gap-filling, impact of judicial bodies and their lawfinding and possible law-making function.

An important issue, which transcends the work, is how to strike the balance between the harmonisation by formal means of legislation and the creative law-making role of jurisprudence and doctrine in order to accommodate the promotion of a dynamic and continued progress in the harmonisation, the necessary degree of predictability and legal certainty, and a clear distinction from the otherwise non-harmonised applicable national law.

The EAPIL Working Group on the Reform of the Brussels I bis Regulation has issued a preliminary position paper formulating proposals for reforming the Regulation.

The proposals are based on the opinions expressed by the members of the working group and the participants at the conference held at the Max Planck Institute Luxembourg in September 2022. The proposals of the members of the Members Consultative Committee were also forwarded to the drafters of the position paper.

The chairs of the Working Group (Burkhard Hess and Geert van Calster) now invite all interested members of EAPIL and readers of the blog to participate in a survey on the proposals formulated in the position paper until 13 March 2023. The survey can be accessed here.

This post has been written by Silvana Canales Gutiérrez, who is a Postdoctoral Researcher at Rovira i Virgili University (Tarragona).

The “First International Seminar on rights in rem in the European Union: General Aspects and International Jurisdiction”, directed by Georgina Garriga (Universitat de Barcelona) and Maria Font (Universitat Rovira i Virgili), took place at the Faculty of Legal Sciences of the Universitat Rovira i Virgili in Tarragona, on 10 and 11 November 2022.

The conference focused on rights in rem, approached from the standpoint of EU private international law (EUPIL) and comparative law, trying to identify the problematic aspects of the “in rem” qualification under the regulatory instruments applicable in the EU (mainly, Regulation (EU) 1215/2012), as well as under Spanish domestic law, owing to the plurilegislative nature of its legal system.

A. The Contents of Rights in Rem from a Comparative Law Perspective

The conference was permeated by an analytical and comparative approach that began with the presentation by Héctor Simón Moreno (Universitat Rovira i Virgili) on “Rights In Rem in Europe: A Comparative Perspective”.  The speaker explained the essential differences in the conception of rights in rem existing in common law and civil law legal systems. He argued that these differences affect the dimension of these rights and directly influence their material content, as well as the ways of acquiring, transmitting, or losing these rights, their effects on third parties and the legal actions for claiming them, which can change from system to system.

In the same line of thought, Francisco J. Garcimartín Alférez (Universidad Autónoma de Madrid) pointed to the difficulties in delineating rights in rem in the EU legal order. These difficulties stem from the uncertainties that surround the definition and the terminology relating to this subject-matter both in the normative instruments and in the case law of the EU. However, the speaker deemed it possible to identify certain “key points” of rights in rem, such as the right of ownership and their enforceability against third parties. It is even possible to shape a relatively consistent general definition of rights in rem: although such exact definition cannot be directly extracted from normative texts, it is possible to identify the essential attributes of these rights, that could help in their characterization.

Eva-Maria Kieninger (Julius-Maximilians-Universität Würzburg), addressed the traditional distinction between rights in rem on movable and immovable property. The speaker explained that the general idea of rights in rem existing only on immovable property can also be extended to movable property, through a legal fiction which portrays them not only as an accessory, but also as an integral part of a piece of land. In this regard, the speaker gave the example of solar panels: according to Dutch case law, if their vocation is to remain in the real estate, they can change their status of movable property and become part of the land where they are located. However, the criterion to determine the legal conversion of movable property into real estate presents difficulties in the EU, taking into account that there are neither proposals for unification of the Member States’ land laws, nor domestic proposals within each State to define or regulate such conversion. To solve this legal vacuum at a global level, UNIDROIT developed a proposal for a convention that was adopted in 2019, the “Protocol to the convention on international interests in mobile equipment on matters specific to mining, agricultural and construction equipment” (MAC protocols), which, as of 20 September 2022, has only been signed by six countries and has been ratified by none.

B. The Contents of Rights in Rem in Plurilegislative Legal Systems

From a comparative perspective, rights in rem can be regulated in different ways, especially when dealing with plurilegislative legal systems. This premise was developed by Ángel Serrano Nicolás (Notary in Barcelona), who presented a comparative analysis of the different legal systems coexisting in Spain to regulate rights in rem. In particular, he explained the differences between the Spanish Civil Code and the foral civil regulations of Catalonia, the Basque Country and Navarra, in relation to legal institutions such as usucapio, surface rights, easements, the right of withdrawal and first refusal, and the right of use and habitation, among others.

In the same line of argument, but from a conflict-of-laws perspective, Albert Font i Segura (Universitat Pompeu Fabra) highlighted the exclusive competence of the State in registry matters. This exclusive competence unifies the access, publicity and regulation of rights in rem, facilitating their homogeneity of treatment despite the diversity existing in the Spanish civil regulations. This diversity impacts, in particular, on the regulation of inter-local conflicts (Basque Country), on the administrative control of the registry qualification, on procedural legislation and on the guarantees of the rights in rem. The application of one regulation or another is not easy to establish and this problem cannot always be avoided by means of an agreement on the applicable law. These legal frictions create an inter-regional conflict of laws that is at least debatable, and which has been the subject of decisions by the Constitutional Court on several occasions.

The analysis of the current situation of rights in rem within this panel revealed that there are different ways of conceiving their constituent elements. At the same time, it is not possible to say that there are currently new rights in rem, which are excluded from the applicable regulations, even where they involve electronic contracting with innvoative elements, such as transactions with cryptocurrencies or 3D property rights.

C. International Jurisdiction

Moving on to the subject of international jurisdiction, specifically on Regulation (EU) 1215/2012, the remaining speakers analyzed the most important aspects of this Regulation, pointing to the problems of application of certain of its articles, the alternative interpretations of some of its provisions and, in some cases, making proposals on how to improve its wording or application to meet its objectives in the light of the new challenges facing EUPIL.

Ilaria Pretelli (Institut Suisse de Droit Comparé) began by explaining that the maxim forum rei sitae applies when it comes to actions related to determining the extent, content, ownership or possession of property. This classic relationship between jurisdiction and the place where the property is located is justified by the fact that, for evidentiary purposes, it is necessary to carry out verifications, investigations and expert opinions in the place where the property is located, provided that the claim involves an assessment strictly linked to such place, in accordance with the doctrine developed by the CJEU. However, as regards mixed actions, these may generate a conflict of jurisdictions when they involve a personal right and a right in rem, taking into account that these actions are predominantly in personam. The fact that the contract in dispute concerns immovable property is irrelevant, the immovable nature of the subject matter of the contract being of marginal importance only (e.g. Case C-417/15). This being so, it may be necessary to reconsider the applicability of the forum rei sitae rule in cases where the main object of the action is the claim of a personal right and not of a right in rem.

Ivana Kunda (University of Rijeka) gave an interesting explanation on the recovery of cultural objects under Regulation (EU) 1215/2012. The speaker explained that cultural objects have a special protection, as they are part of the heritage and history of mankind, which means that they do not theoretically belong to a State, but are goods of interest to the society as a whole. Taking the above into consideration, art. 7.4 of Regulation (EU) 1215/2012, whose intention is to protect cultural objects located in the Member States by establishing a specific forum to recover them, has a limitation that is not in line with the objectives of the special protection needed by  this type of property. In fact, this provision requires both the defendant and the cultural object to be located in the Member States for the Regulation to be applicable. The speaker proposed a change of this provision, modeled on other RBIbis protective fora, in which the defendant is not required to be domiciled in the Member States in order to be sued in the EU. This same model could be replicated for Art. 7.4 of the Regulation.

Cristina González Beilfuss (Universitat de Barcelona) focused on the problematic assimilation (for civil law) of the trust. In English and Anglo-American law, it is not clear whether the trust is a right in rem: while being included within the property right, there is a split between the rights of the beneficiary and those of the trustee. In contrast, in civil law, the property right is absolute, which makes it necessary to adapt the trust. These different understandings of the trust in civil and common law systems have an impact on the determination of international jurisdiction, since it must be established whether it is an action related to a  right in rem, or whether the subject matter of the claim falls under the scope of personal rights. This distinction affects the determination of the forum (Articles 7 and 25 of Regulation (EU) 1215/2012). Additionally, other interpretative doubts arise, concerning, for example, the lack of uniformity and the difficulties in determining the domicile of the trust, or the application of Regulation (EU) 1215/2012 to testamentary trusts (considering that wills are excluded from the scope of application of the Regulation).

Carmen Parra Rodríguez (Universitat Abat Oliba CEU) put forth a proposal for improving Regulation (EU) 1215/2012 as concerns rights in rem over movable property. The speaker remarked that the concept of movable property is not defined in this Regulation, which does not contemplate a specific forum in this respect. Due to this, there are proposals that regard the forum rei sitae as a potential alternative for actions involving movable property, although the mobility of such assets generally makes it difficult to definitively determine the place where they are located. Thus, other fora may be more appropriate to the nature of movable property, such as the defendant’s domicile, the place where the property is registered, the court with the closest ties, or determining jurisdiction by express or implied submission.

Josep Maria Fontanellas Morell (Universitat de Lleida), argued for a relaxation of the exclusive forum of Article 24 of Regulation (EU) 1215/2012. The speaker argued, on the one hand, that the qualification adopted by the CJEU in this respect needs clarification, insofar as it should better delimit the category to distinguish it from other adjacent ones, such as contractual obligations or delictual or quasi-delictual matters. On the other hand, the arguments that justified, at the time, the creation of an exclusive forum should be reconsidered, as they have now partly lost their raison d’être.

D. Future Events

The ideas put forward in the Seminar are the beginning of a debate on the Private International Law of rights in rem, which will continue in the near future. Two other events (open to the general public) on this same subject are scheduled: the first is especially devoted to the perspective of the Spanish and European notary’s office and it will be held (in Spanish) on 13 and 14 June 2023 at the College of Notaries of Catalonia (Barcelona, Spain). The second will be focused on a future instrument on the law applicable to rights in rem. It will take place in 2024 at the University of Barcelona and it will be held entirely in English.

Matthias Lehmann (University of Vienna) and Gilles Cuniberti (University of Luxembourg) are considering establishing an EAPIL Working Group on the Law Governing Digital Assets.

The first project of the Working Group would be to write a position paper to be filed for the purpose of the online consultation of the Draft UNIDROIT Principles and Commentary on Digital Assets and Private Law. The consultation ends on 20 February 2023.

The EAPIL position paper would focus on the private international aspects of the UNIDROIT proposal.

Any EAPIL Member interested in joining the Working Group should contact either Matthias Lehmann (matthias.lehmann@univie.ac.at) or Gilles Cuniberti (gilles.cuniberti@uni.lu) as soon as possible.

In a decision of November 2022, the Swedish Labour Court held that Qatar had, at least in part, the right to invoke state immunity from jurisdiction in connection with proceedings relating to an employment matter.

Background

An employee at the Qatari embassy in Stockholm was summarily dismissed in September 2021. He filed a lawsuit against the State of Qatar in the Stockholm District Court requesting invalidation of, and compensation for, unfair dismissal. Qatar objected to Swedish jurisdiction by invoking State immunity under international law.

Decision

In a preliminary decision, the Stockholm District Court granted Qatar State immunity regarding the invalidation claim, but denied it with respect to the claim for compensation. The Labour Court, which was the court of appeal and last instance in the matter, agreed with the District Court’s conclusion.

In its decision, the Labour Court held that the dispute had such a “close connection” to Sweden that Swedish courts should be able to assert jurisdiction, unless Qatar had the right to invoke state immunity. The court continued by stating that whether or not state immunity from jurisdiction should be respected is dependent on customary international law. In this regard, the court held that the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property is representative of customary international law.

Article 11 of the 2004 UN Convention deals with employment law matters. The provision contemplates several exceptions to State immunity in this field, i.e., situations where a State, as a defendant before the courts of another State, are not entitled to immunity.

Article 11(2)(c) sets out that States are immune from jurisdiction whenever “the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual”. Although this provision does not explicitly deal with the invalidation of a dismissal, the Swedish Labour Court concluded that such invalidation is equivalent to reinstatement. With references to the European Court of Human Rights’ (ECtHR’s) judgments Naku v. Lithuania and Sweden and Cudak v. Lithuania, the Labour Court found that granting State immunity does not amount to a violation of the employee’s right to a fair trial under Article 6 in the European Convention of Human Rights (ECHR).

In its examination of the ECtHR’s judgments, the Labour Court noted that Naku had requested both reinstatement and damages and that the ECtHR had found that it was wrong to grant State immunity in that case. The Labour Court noted that the ECtHR made a point that an employee under Lithuanian law could be given severance pay instead of reinstatement. There is no possibility for a court to do so under Swedish law when a former employee has pleaded invalidation of an employer’s dismissal. Therefore, the Labour Court concluded that granting State immunity for Qatar was not a violation of Article 6 in the ECHR.

Analysis

The Swedish Labour Court’s decision is, in my opinion, problematic and can be criticized for at least three reasons. First, the Labour Court makes no references to EU private international law. Second, the Labour Court’s formalistic approach to public international customary law is erroneous. Third, the Labour Court only – selectively – referred to ECtHR case law on the balance of state immunity and the right to a fair trial. In the following, I will develop those three points of critique.

EU Private International Law Determines Jurisdiction

Whether or not a Swedish court has jurisdiction in an international employment law matter follows from the Brussels I bis Regulation.

Under Article 1, the Regulation shall apply in “civil and commercial matters.” This concept has, on several occasions, been interpreted by the Court of Justice of the European Union (CJEU) as including actions by public authorities, as long as they do not exercise public powers. Further, it is clear that this also extends to embassy employment cases (see, e.g., ZN, C-280/20, paras 26–28, and Mahamdia, C-154/11, para 56). Even under the old Brussels I Regulation, it was clear that the regulation was applicable to third countries’ embassies, as they are to be considered “establishments” (Mahamdia, p. 41). Under the Brussels I bis Regulation, Article 6 has been extended to apply to all matters in which an employee habitually carries out his or her work in the EU, regardless of where the employer is domiciled. In such cases, the Regulation must be applied in the EU Member States (Roi Land Investments, C-604/20 para 48).

With this in mind, it is misleading that the Swedish Labour Court seemingly applies the jurisdictional standard of “Swedish interest of adjudication” that is used against defendants domiciled in third countries, without mentioning the Brussels I bis Regulation.

The 2004 UN Convention Does Not Reflect International Customary Law

The Labour Court oversimplifies customary international law by referring mechanically to the 2004 UN Convention.

Customary international law is defined by its constantly evolving nature and the fact that it must be derived from state practice. Therefore, international customary law cannot ever really be codified. The convention may serve as one of many pieces of public international customary law, but cannot be applied mechanically.

When using the 2004 convention, one shall bear in mind that there were some controversies about the content of the convention when it was adopted and that it still has not gathered enough support to enter into force. Further, since the convention was drafted nearly 20 years ago, important case law development has been made by i.a. both the CJEU and the ECtHR regarding State immunity in embassy employment disputes. As case law from these courts is to be applied by Swedish courts, irrespective of customary international law, it is questionable that this case law was not taken into consideration. This leads me to my third point of critique: that the Labour Court did not correctly refer to relevant EU and ECtHR case law.

The Labour Court Did Not Correctly Refer to Relevant ECtHR and CJEU Case law

Over the last 15 years, the ECtHR has developed a unanimous approach to State immunity in embassy employment law cases. This approach is made clear in the 2019 judgment Ndayegamiye-Mporamazina v. Switzerland. In this judgment, the ECtHR makes clear that an important feature for granting state immunity from jurisdiction is that the employee can access courts elsewhere. In Ndayegamiye-Mporamazina v. Switzerland, the employee could initiate proceedings in the embassy state of Burundi. Access to courts elsewhere in the world has long been a cornerstone in the evaluation of upholding state immunity (see Prince Hans-Adam II of Liechtenstein v. Germany). In the Swedish Labour Court’s decision, the access to courts in Qatar was not assessed at all.

Concluding Remarks

In my opinion, it is a pity that the Labour Court did not pay attention to neither the EU private international law aspect nor the relevant case law developments from the ECtHR. For the development of customary international law regarding state immunity in embassy employment matters, well-motivated case law is needed. Due to the flaws described above, the Swedish Labour Court’s decision can hardly be seen as a contribution to the development of customary international law.

The European Commission is adopting a package of infringement decisions due to the absence of communication by Member States of measures taken to transpose EU directives into national law. Among these, the Representative Actions Directive (EU) 2020/1828, whose description can be found in this blog.

Since the Representative Actions Directive entered into force in December 2020, Member States had two years to transpose it into their national law and to inform the Commission, with a further six months for the new provisions to come into effect.

While there is work ongoing in most Member States on adopting the laws, a large number of Member States failed to notify national measures fully transposing the Representative Actions Directive by the deadline set for 25 December 2022 and will therefore be receiving letters of formal notice: Belgium, Bulgaria, Czechia, Denmark, Germany, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Luxembourg, Malta, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland and Sweden.

Member States concerned now have two months to reply to the letters of formal notice and complete their transposition, or the Commission may decide to issue a reasoned opinion.

In February 2023, the Court of Justice of the European Union will publish two decisions and one opinion, all three on Thursday 16.

The expected judgments concern case C-393/21, Lufthansa Technik AERO Alzey, and C-638/22 PPU, Rzecznik Praw Dziecka e.a. (Suspension de la décision de retour).

In C-393/21, the Lietuvos Aukščiausiasis Teismas (Lithuania) is asking the Court to interpret Article 23 of Regulation No 805/2004, as well as Article 36(1) and Article 44(2) of Regulation No 1215/2012.

1. How, taking into account the objectives of Regulation No 805/2004, inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?
2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?
3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?
4. Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?
5. Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 … on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

I summarized the facts of the main proceedings here. AG Pikamäe made his opinion public on October 20, 2022. There is no English translation available so far. A non-official one could be:

1. Article 23 of Regulation (EC) No. 805/2004 … must be interpreted in the sense that the expression “exceptional circumstances”, for the purposes of this provision, includes the serious and irreparable damage that would be caused to the debtor by the immediate execution of the resolution certified as a European enforcement order, which (the damage) characterizes an urgent situation that corresponds to the debtor to demonstrate. If proven, it will be for the court or competent authority of the executing Member State to weigh the interests at stake in the light of all the relevant circumstances of the specific case.

Only the measures limiting the enforcement procedure, referred to in article 23, letters a) and b), of said Regulation may be subject to a combined application.

2. Articles 6 and 11 of Regulation No. 805/2004 shall be interpreted as meaning that where the enforceability of the decision certified as a European enforcement order in the Member State of origin has been suspended and the certificate provided for in Article 6(2) of that Regulation has been transmitted to the competent authority in the executing Member State, the latter will be obliged, within the framework of the application of the applicable national rules, to guarantee the full effectiveness of article 11 of said Regulation by means of the suspension of the enforcement procedure.

The deciding Chamber is composed by judges Lycourgos, Rossi, Bonichot, Rodin, and Spineanu-Matei acting as reporting judge.

My summary of the facts corresponding to Case C-638/21 PPU can be read here. The opinion of AG Emiliou, available only in a few languages – not English – were published on January 12. My translation would be:

On the one hand, Article 11(3) of Council Regulation (EC) No 2201/2003, read in conjunction with Articles 2 and 11 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as well as, of the other hand, Articles 7 and 47 of the Charter of Fundamental Rights of the European Union, should be interpreted in the sense that they are opposed to national legislation entailing the suspension by operation of law, on a simple unsubstantiated request from certain authorized public entities, of the execution of a final decision to return pronounced at the end of two ordinary instances, during a first two-month period these entities dispose of to lodge an appeal in cassation and, as the case may be, for the entire duration of this appeal.

The decision will be taken by a Chamber of five judges, namely Safjan, Piçarra, Jääskinen, Gavalec and Jürimäe, with the latter as reporting judge.

Finally, AG Pikamäe will hand in the opinion in case C-567/21, BNP Paribas, a request from the Cour de Cassation (France). The main proceedings relate to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal . Previously, he had initiated proceedings in London, his last place of work, and he had obtained a judgment ordering that company to pay him compensation for unfair dismissal. The French courts must now determine if the previous decision (i.e. the English one) has any bearing in the admissibility of the claim filed with them.

1. Must Articles 33 and 36 of Council Regulation (EC) No 44/2001 (…) be interpreted as meaning that, where the legislation of the Member State of origin of the judgment confers on that judgment authority such as to preclude a new action being brought by the same parties for determining the claims that could have been raised in the initial proceedings, the effects which that judgment has in the Member State in which enforcement is sought preclude a court of that latter State, whose legislation, as applicable ratione temporis, provided in employment law for a similar obligation of concentration of claims, from adjudicating on such claims?
2. If the first question is answered in the negative, must Articles 33 and 36 of Council Regulation No 44/2001 be interpreted as meaning that an action such as a claim of unfair dismissal in the United Kingdom has the same cause of action and the same subject matter as an action such as a claim of dismissal without actual and serious cause in French law, so that the employee’s claims for damages for dismissal without actual and serious cause, compensation in lieu of notice, and compensation for dismissal before the French courts are inadmissible after the employee has obtained a decision in the United Kingdom declaring that there has been an unfair dismissal and making a compensatory award in that respect? Is it necessary in that regard to distinguish between, on the one hand, the damages for dismissal without actual and serious cause that might have the same cause of action and the same subject matter as the compensatory award and, on the other, the compensation for dismissal and compensation in lieu of notice which, in French law, are payable where the dismissal is based on an actual and serious cause, but are not payable in the event of dismissal based on serious misconduct?
3. Likewise, must Articles 33 and 36 of Council Regulation No 44/2001 be interpreted as meaning that an action such as a claim of unfair dismissal in the United Kingdom and an action for payment of bonuses or allowances provided for in the contract of employment have the same cause of action and the same subject matter when those actions are based on the same contractual relationship between the parties?

The decision on this case will be rendered by a Chamber of five judges – Jürimäe, Safjan, Piçarra, Jääskinen and Gavalec, this time with Judge Jääskinen reporting.

Asif Efrat (Reichman University, Israel) authored a book titled Intolerant Justice – Conflict and Cooperation on Transnational Litigation, with Oxford University Press.

In a globalized world, national legal systems often face dilemmas of international cooperation: Should our citizens stand trial in foreign courts that do not meet our standards? Should we extradite offenders to countries with a poor human rights record? Should we enforce rulings issued by foreign judges whose values are different from our own? Intolerant Justice argues that ethnocentrism—the human tendency to divide the world into superior in-groups and inferior out-groups—fuels fear and mistrust of foreign justice and sparks domestic political controversies. Skeptics portray foreign legal systems as a danger and a threat to local values and interests. Others, however, seek to dispel these concerns, arguing that legal differences among countries should be respected. Such disagreements often make it harder to establish cooperation on litigation.

The book traces this dynamic in a range of fascinating cases, including the American hesitation to allow criminal trials of troops in the courts of NATO countries; the dilemma of extradition to China; the European wariness toward U.S. civil judgments; and the controversy over the prosecution of foreign terrorist fighters for ISIS. Despite the growing role of law and courts in international politics, Intolerant Justice suggests that cooperation among legal systems often meets resistance, but it also shows how this resistance can be overcome. These insights will speak to anyone who seeks to strengthen the rule of law and international collaboration in an era of increasing nationalism. 

The table of contents can be accessed here.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that the exclusive jurisdiction of the courts of the place where a public registry is held under Article 24(3) of the Brussels I bis Regulation only covers actions concerned with the formal validity of an entry in such a registry.

Background

The case was concerned with the enforcement of an English judgment over the shares of a French company owned by the judgment debtor.

The creditor, English corporation Barclay Pharmaceuticals, had obtained a judgment in 2012 from the English High Court ordering its debtor, a French individual, to pay over £ 12 million. The judgment was declared enforceable in France under the Brussels I Regulation.

It seems that it was not  easy to find assets belonging to the debtor and the creditor sought and obtained from the English high court an order in 2018 declaring that the shares owned by the wife of the debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband.

On the basis of the English 2012 judgment and 2018 order, the creditor had a French enforcement authority carry out an enforcement measure over the shares.

Judgment

The debtor challenged the validity of the enforcement measure in French courts on a number of grounds.

Nouveau Tribunal de Commerce et Conseil de Prud’hommes de Bobigny (93)

One of them was that the 2018 English order could not be enforced in France, because the proceedings fell within the exclusive jurisdiction of French courts. The debtor argued that the proceedings had “as their object the validity of an entry in a public register” in the meaning of Article 24(3) of the Brussels I bis Regulation. As a result, the English High Court lacked jurisdiction, and its order could not produce effect in France.

The particular company was a Société Civile Immobilière (SCI). The shareholders of French SCIs appear in the French register for companies (Registre du commerce et des sociétés). The name of the wife presumably appeared in the register. A logical (but, importantly, not necessary, see below) consequence of the English order was that the entry into the registry would become inaccurate. There was, therefore, some potential influence of the English order over an entry into a French registry.

The issue before the Cour de cassation was thus to define the scope of the exclusive jurisdiction under Art. 24(3). The Court defines it as limited to proceedings concerned with the “formal validity” of entries into the registry.

In this case, the English court had ruled on the accuracy of an entry. This was an issue of substance, not form. Nobody was suggesting, and certainly not the English court, that the requirement for registering those shares had not been complied with. The English order had only ruled that the owner of the shares was different from that appearing in the register.

The appeal was thus dismissed, and the enforceability of the 2018 English order confirmed, since the English court had not violated the exclusive jurisdiction of French courts.

Assessment

The rationale for the exclusive jurisdiction over public registries seems to be that such registries are public authorities, and that foreign states cannot interfere with the operation of a public authority. This certainly explain why the procedure for registering a company in a public registry is necessarily governed by the law of the local state, and that only local courts could assess whether it was complied with. That is likely the idea behind the concept of “formal validity”.

Yet, whether formal validity can always be distinguished from  substantive validity is not obvious. This might well depend on the effect of the registration. If, under the applicable law, the registration determines the existence of the right (e.g. the ownership of the shares), then it is not easy to distinguish between formal and substantive validity.

But the law was simpler in this case. Under French law, the ownership of shares in SCIs is not determined by the registration. The effect of the registration is merely to extend the effects of the right to certain third parties. But registration is not mandatory. A transfer of ownership of shares would be valid as between the parties and third parties knowing about it without registration.

In this context, the distinction of the Cour de cassation makes sense. If the parties could transfer shares without registration, an English court could equally rule on the ownership of shares without interfering with the French registry.

Conclusion: it is unclear whether the concept of validity of an entry in a public registry under article 24(3) can be defined without reference to national law and the effect of registration in the relevant Member State.

UNIDROIT has started an online consultation on its Draft Principles and Commentary on Digital Assets and Private Law, which Marco Pasqua has thankfully posted on this blog.

Principle 5 titled “Conflict of laws” will be of special interest for our readers, yet even experts of the field may have trouble understanding this somewhat complex provision. As an observer in the Working Group, I would like to give some background.

Scope ratione materiae

The subject of Principle 5 is the law applicable to proprietary issues in digital assets. A digital asset is defined in a broad way as an “electronic record which is capable of being subject to control” (Principle 2(2)). This covers all cryptocurrencies and tokens. The term “proprietary issues” is not defined but can be understood as encompassing the existence and transfer of ownership as well as other rights in rem.

Party Autonomy

The law governing proprietary issues in digital assets is defined by a waterfall.

The first two levels are dominated by party autonomy. Principle 5(1)(a) refers to the law expressly specified in the digital asset itself, whereas Principle 5(1)(b) points to the law chosen for the system or platform on which the asset is recorded.

Free choice of law may be seen as a heresy in property law. Yet it must be borne in mind that the blockchain environment is relatively self-contained. A restricted choice of the applicable property law has already been accepted in the Hague Intermediated Securities Convention. This was a door-opener, even though the EU did not sign up.

The problem lies elsewhere. Virtually none of the existing digital assets or systems contains a choice of law. This is by no means a coincidence, but the result of the anti-etatist beliefs of the social circles in which the technology was conceived. Since these beliefs are unlikely to change any time soon (if ever), choice of law for a blockchain will remain as rare as hen’s teeth.

Options A and B

If the governing law is not chosen (i.e. virtually always), the draft provides two options (Principle 5(1)(c)). Under Option A, a state can specify the relevant rules of its forum law which should govern, and to the extent these are insufficient, refer to the UNIDROIT Principles as a kind of gap-filler. Under Option B, it can declare the UNIDROIT Principles to apply directly, without specifying any part of its domestic law.

What is striking is that the conflict-of-laws method is completely ignored here. The law of the forum or the UNIDROIT Principles govern, regardless of the connections of the case.

This may be justified insofar as substantive law harmonisation on the international level is achieved, i.e. in case of Option B. But where a state follows Option A by specifying certain rules of the forum as applicable, these rules would in fact govern all situations world-wide before its courts. Other states following Option A would also specify their own national rules. Divergences between these rules will not only be cast in stone, but exacerbated by substantive rules of PIL (règles matérielles de droit international privé). The result will be a global jumble, leading to the opportunities of forum shopping which PIL experts know so well. 

UNIDROIT Trumps National Law

If the governing law is not chosen, nor the substantive rules or the UNIDROIT Principles on Digital Assets apply, then the law applicable by virtue of the PIL rules of the forum governs (Principle 5(1)(c)). The PIL rules are thus relegated to the last level. What is more, no harmony is achieved, as not a single indication is given on how the states should fashion their PIL. Anything goes – hardly a recipe for global harmonisation.

Joint Project with HCCH

The Hague Conference on PIL has just published a joint proposal with UNIDROIT for a “Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens”. It shall deal specifically with Principle 5 of the UNIDROIT Draft. This is the first joint project between the two institutions. One may nurture the hope that it will result in more precise and elaborate connecting factors. Until then, the need for clearer conflicts rules may be highlighted in the UNIDROIT online consultation, which is open until 20 February 2023.

The rules on negotorium gestio in Article 11 Rome II Regulation have received little attention so far and are rarely well understood. Jonas Fritsch has written a PhD thesis on them, in which he compares the different legal systems of the Member States and examines in detail the connecting factors of Article 11 Rome II. He has kindly provided the following summary:

“Negotiorum gestio is a concept that can be described as multifaceted. Whilst in Germany it is subject to many controversial discussions in academia, other Member States of the EU barely know it. In any case, its scope is vague. This is why the EU’s ambition to create a uniform conflict of laws rule was described by the Hamburg Group for Private International Law as “a bold attempt”. The presented thesis sheds light on the end product of EU’s work by analyzing in particular Article 11 of EU’s Rome II Regulation. This provision is interpreted in detail and considered in the context of the other provisions of EU’s regulatory framework.

The analysis is preceded by a section deemed to create a methodological foundation for the later work. Here, for example, the question is addressed as to whether in European law a distinction must be made between “mere” interpretation and further development of the law (so-called “Rechtsfortbildung”). Whilst the CJEU does not differentiate between both concepts of methodology, it is shown that they differ considerably. For this reason, the author opts for identifying a legal finding that goes beyond mere interpretation and applying the appropriate methods to this. By referencing the discussion in German academia, it is shown that it is no longer a matter of “mere” interpretation when the law’s wording is exceeded.

On this basis, Article 11 Rome II is examined. Here, selected legal systems (in particular Germany, Austria, France, Spain and Italy) are studied with regard to their view on negotiorum gestio. From this, conclusions are drawn on the scope of application of Article 11 Rome II. At the end it becomes clear that the provision’s scope includes all claims that arise when a person (the intervenor) intervenes in the affairs of a third party (the principal), does not (exclusively) act in his or her own interest and is not obliged to do so.

Subsequently, the connecting factors provided for in Article 11 Rome II are analyzed. Particularly neuralgic is Article 11(3) Rome II. The “country in which the act was performed” is difficult to identify in some cases as there is uncertainty about the meaning of the term “act”. This causes problems, for example, when the actions of the intervenor are locally distinct from their effects – additional examples are presented in the book. It is demonstrated that Article 11(3) Rome II can be directly applied only if the intervenor’s actions immediately coincide with an interference with absolutely protected rights (such as body integrity or property) or the principal’s unpaid obligations (i. e. payment of the principal’s debts). In all other cases, the purpose (or “telos”) underlying Article 11(3) Rome II is missed. This is why the author states that Rome II contains an unconscious lacuna in this regard: It can be assumed that the European legislator intended to regulate all cases of negotiorum gestio; however, it has not been able to consider all possible constellations. This lacuna needs to be filled and this should be done by applying the law of the place where the specific interest of the principal is located; this constitutes a neutral connecting factor and is thus in line with the telos of Article 11(3) Rome II. Stating this, the author also mentions that other scholars might disagree with the presented way of solution and rather refer to the escape clause contained in Article 11(4) Rome II to handle those cases. However, he points to the uncertainties regarding the proper application of the escape clause and that it does not apply here on the basis of the proper understanding.

Finally, the European civil procedural law and the qualification of claims arising out of negotiorum gestio are discussed. The thesis reveals that such claims are subject to the jurisdiction according to Article 7 No. 2 Brussels Ibis and cannot be qualified contractually”.

Contact the author: jonas.fritsch@staff.uni-marburg.de

A conference on The Law of Treaties as Applied to Private International Law is scheduled to take place in Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).

The conference will be opened by two general presentations. Catherine Brölmann (University of Amsterdam) will present the rules of public international law relating to treaties and discuss the manner in which, and the extent to which, they can reflect the specificities of the subject-matter of the treaty concerned. Patrick Kinsch (University of Luxembourg) will outline the relevance of the law of treaties to the development and implementation of international conventions in the field of private international law.

Five thematic panels will follow, each featuring a discussion between experts in the law of treaties and speakers familiar with the practice relating to private international law treaties, respectively.

The first panel, on The conclusion and entry into force of private international law treaties, will be chaired by Hans Van Loon (former Secretary-General of the Hague Conference on Private International Law). The discussion will involve Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law) and Antonio Leandro (University of Bari).

The second panel, chaired by Sergio Carbone (University of Genova, Emeritus), will be devoted to The observance, application and interpretation of private international law treaties. Luigi Crema (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid) and Paul Beaumont (University of Stirling) will speak on the topic.

The third panel will be about The amendment and succession of private international law treaties: Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita) will moderate a discussion between Jan Wouters (KU Leuven) and Andrea Schulz (German Federal Ministry of Justice).

Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) will chair the fourth panel, on The management of conflicts between private international law treaties, with Jan Klabbers (University of Helsinki, TBC) and Alex Mills (University College London) as speakers.

Finally, with Etienne Pataut (University Paris I – Panthéon-Sorbonne) chairing, Malgosia Fitzmaurice (Queen Mary University of London), Chiara Tuo (University of Genova) and Zeno Crespi Reghizzi (University of Milan) will discuss issues in connection with Avoiding, exiting and litigating commitments arising from private international law treaties.

A roundtable on The role of IGOs in the elaboration, implementation and coordination of private international law treaties, chaired by Fausto Pocar (University of Milan, Emeritus), will follow. Participants will include: Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice), Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), and Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral).

The conference, which will also feature a key-note speech by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC), will be closed by remarks by Stefania Bariatti (University of Milan).

The conference is organised by a scientific committee consisting of Stefania Bariatti, Giacomo Biagioni, Pietro Franzina and Lorenzo Schiano di Pepe, and will take place at the Catholic University of the Sacred Heart.

The full programme can be found here, together with additional practical information. Those wishing to attend must fill in the registration form available here. Early bird rates are offered to those registering before 6 March 2023.

For further information, please write an e-mail to: pietro.franzina@unicatt.it.

The International Institute for the Unification of Private Law (UNIDROIT) is presently conducting a public consultation regarding a set of Draft Principles and Commentary on Digital Assets and Private Law.

These Principles have been prepared by the Working Group on Digital Assets and Private Law over the course of 7 sessions between 2020-2022. Additional information about the Working Group and its meetings can be found here.

Comments should be provided in English, using this online form. The form is divided into seven sections consistent with the text of the Principles; section II is about private international law.

The deadline to submit comments is 20 February 2023. The Working Group will consider the comments received at its next session (8-10 March 2023).

For further information, please contact Hamza Hameed at h.hameed@unidroit.org.